When States' Legislation and Constitutions Collide with Angry Locals

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Heidi Gorovitz Robertson
Cleveland-Marshall College of Law, Cleveland State University, [email protected]
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Robertson, Heidi Gorovitz, "When States' Legislation and Constitutions Collide with Angry Locals: Shale
Oil and Gas Development and Its Many Masters" (2016). Law Faculty Articles and Essays. 886.
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WHEN STATES’ LEGISLATION AND CONSTITUTIONS
COLLIDE WITH ANGRY LOCALS: SHALE OIL AND GAS
DEVELOPMENT AND ITS MANY MASTERS
HEIDI GOROVITZ ROBERTSON*
INTRODUCTION ............................................ 58
I. THE MANY MASTERS OF SHALE OIL AND GAS PRODUCTION:
LEGISLATION, CONSTITUTIONS, AND THE COURTS........... 61
A. Ohio’s Oil and Gas Law ........................ 61
B. The Ohio Constitution’s Home Rule Provision....... 68
C. Local Control Under Ohio’s Oil and Gas Statute .... 73
1. Local Control Through Local Legislative
Action ................................. 73
a. Local Ordinances: Warren, Ohio ..... 75
b. Another Attempt at Local Control:
Munroe Falls, Ohio ................ 76
1) Munroe Falls in the Ohio Court of
Appeals (Ninth District) ...... 77
2) Munroe Falls in the Supreme
Court of Ohio ............... 84
3) Oral Argument.............. 86
4) The Decision of the Ohio Supreme
Court...................... 88
5) Beck Energy Sues Again...... 91
2. Drilling Bans by Voter Initiative........... 94
a. Local Ban on Injection Wells for Waste
Disposal Leads to Drilling Ban:
Mansfield, Ohio ................... 95
* Heidi Gorovitz Robertson is the Steven W. Percy Distinguished Professor of Law at the
Cleveland-Marshall College of Law and Professor of Environmental Studies at the Levin
College of Urban Affairs, Cleveland State University. The author thanks her student
research assistants, Kathryn Stovsky, Elizabeth Bonham, and Lawrence Boothe, and the
Cleveland-Marshall College of Law Library, for their exemplary work on this project.
Thanks also to the Cleveland-Marshall Summer Research Fund. Early versions of this
work were presented at the University of Petroleum and Energy Studies, Dehradun,
India, the University of Pittsburgh’s Workshop on the Regional Impacts of Shale Gas
Drilling, the Northeast Ohio Law Faculty Colloquium, and the International Academic
Association of Planning, Law, and Property Rights 10th Annual Meeting. Thanks to all
involved for their comments and suggestions, though responsibility for the final product,
of course, is mine alone.
55
56 WM. & MARY ENVTL. L. & POL’Y REV. [Vol. 41:55
b. Community Bills of Rights: Drilling Bans
Through Local Charter Amendment... 97
1) A Community Bill of Rights
Defeated in Favor of a Study
Commission: Gates Mills,
Ohio ...................... 98
2) Challenges to Rights-Based
Drilling Bans: Broadview
Heights, Ohio.............. 100
3) Community Bill of Rights in
Other Ohio Jurisdictions..... 102
3. More Methods Ohio Local Jurisdictions Use to
Attempt to Influence Drilling............. 104
a. Influencing Drilling by Regulating
Related Activities................. 104
b. Controlling Drilling by Using the
Administrative Process............ 105
c. Next Steps for Local Jurisdictions:
Thoughts from the Regional Commission
to Study and Address Shale Oil and Gas
Development .................... 108
II. LOCAL CONTROL IN OHIO’S MARCELLUS AND UTICA REGION
NEIGHBORS........................................ 110
A. Pennsylvania ................................ 110
1. Legislation: Pennsylvania’s Act 13 ........ 111
2. The Pennsylvania Constitution ........... 113
a. The Home Rule Provision.......... 113
b. The Environmental Rights
Amendment ..................... 114
3. Judicial Interpretation: Robinson Township v.
Commonwealth of Pennsylvania........... 114
a. Background ..................... 115
b. Robinson Township in the Commonwealth
Court........................... 115
c. Robinson Township in the Pennsylvania
Supreme Court................... 117
1) The Environmental Rights
Amendment ............... 117
2) Act 13’s Section 3303........ 119
3) Act 13’s Section 3304........ 119
2016] WHEN STATES’ LEGISLATION & CONSTITUTIONS COLLIDE 57
4) Conclusion re: the Pennsylvania
Supreme Court’s Decision.... 120
4. Pennsylvania Conclusion: Environmental
Rights Amendment Serves Pennsylvania
Communities .......................... 120
B. New York ................................... 122
1. New York’s Constitution and Legislative
Background ........................... 122
2. New York’s Oil and Gas Statutes.......... 123
3. New York Law as Compared with Pennsylvania
and Ohio.............................. 124
4. Other Local Ordinances Enacted in
New York ............................. 126
5. A Critical Wrinkle in New York: The Statewide
Drilling Ban........................... 129
6. New York Conclusion: “Little NEPA” Sets New
York Apart ............................ 131
III. A QUICK LOOK AT LOCAL CONTROL ELSEWHERE .......... 134
A. Colorado.................................... 134
1. Constitutional Home Rule Authority....... 134
2. The Colorado Oil and Gas Conservation Act
and Commission (“COGCC”).............. 135
3. Colorado Oil & Gas Preemption in
the Courts............................. 136
B. Texas....................................... 140
1. Texas’s Constitutional Home Rule
Authority ............................. 140
2. Erosion of Home Rule in Texas ........... 141
CONCLUSIONS............................................ 143
A. The Fantasy World ........................... 144
1. An Environmental Rights Amendment..... 144
2. Statutory and/or Judicial Clarity Regarding
Local Regulatory Authority .............. 145
3. Environmental Review .................. 146
B. Reality in an ex rel. Morrison Environment ....... 146
1. Traditional Zoning...................... 147
2. Health and Safety Ordinances............ 147
3. Voluntary Agreements Amongst Neighbors.. 148
4. What Local Jurisdictions Can Do Today.... 149
58 WM. & MARY ENVTL. L. & POL’Y REV. [Vol. 41:55
INTRODUCTION
This Article addresses the essential struggle between a state’s
interest in facilitating shale oil and gas production by creating a uniform
statewide regulatory process and local governments’ interest in protect-
ing residents’ safety, wishes, and environment by exerting control or influ-
ence over drilling activities within their jurisdictions. Local jurisdictions1
across the country are paying attention to the shale oil and gas boom.2
Some jurisdictions want to encourage it, hoping it will bring jobs, custom-
ers, and tax revenues.3 Others want to control it, fearing the environmen-
tal damage it may cause.4 Many would like to require it to operate, if at
1 “Local jurisdiction” or “locality” in this Article, includes chartered municipalities and
non-chartered municipalities that are entitled home rule authority under the Ohio
Constitution, article 18, section 3, as interpreted in N. Ohio Patrolmen’s Benevolent Ass’n
v. Parma, 402 N.E.2d 519, 523–25 (1980).
2 See, e.g., Laura Arenschield, Athens Votes to Ban Fracking, THE COLUMBUS DISPATCH,
Nov. 6, 2014, http://www.dispatch.com/content/stories/local/2014/11/05/athens-votes-to
-ban-fracking.html [https://perma.cc/84FB-PVPT]; Laura Arenschield, Ohio Counties Can’t
Vote to Ban Fracking, Husted Rules, THE COLUMBUS DISPATCH, Aug. 14, 2015, http://www
.dispatch.com/content/stories/local/2015/08/13/Fracking-ballots-nixed-by-Husted.html
[https://perma.cc/C27L-ZCQX]; Youngstown Voters Turn Down Anti-fracking Proposal—
Again, THE YOUNGSTOWN VINDICATOR, Nov. 7, 2014, http://www.vindy.com/news/2014
/nov/07/youngstown-voters-turn-down-anti-frackin/ [https://perma.cc/9EHK-YX6J] (dis-
cussing the four-time failure of local drilling ban legislation in the industry-oriented city
of Youngstown). See also Michael Shellenberger & Tod Nordhaus, Campaign to Stop
Fracking Sacrifices Nature for Ideology: Column, USA TODAY, July 16, 2015, http://www
.usatoday.com/story/opinion/2015/07/16/natural-gas-renewable-fuels-fracking-column
/27089397/ [https://perma.cc/KP2W-ZTFK]; Dan Elliott, Colorado’s High Court to Decide
if Cities Can Ban Hydraulic Fracturing, CBS DENVER (Sept. 21, 2015), http://denver.cbs
local.com/2015/09/21/colorados-high-court-to-decide-if-cities-can-ban-fracking-2/ [https://
perma.cc/RA6L-3EAX]; Susan Phillips, Pennsylvania Supreme Court to Hear More Argu-
ments on Act 13, STATEIMPACT: PENNSYLVANIA (Oct. 30, 2015, 3:12 PM), https://stateimpact
.npr.org/pennsylvania/2015/10/30/pennsylvania-supreme-court-to-hear-more-arguments
-on-act-13/ [https://perma.cc/T9F7-LMK4].
3 See, e.g., Youngstown Voters Turn Down Anti-fracking Proposal—Again, supra note 2;
Youngstown, Ohio is a City Changed by Fracking, BUFF. NEWS, Feb. 21, 2015, http://www
.buffalonews.com/city-region/youngstown-ohio-is-a-city-changed-by-fracking-20140518
[https://perma.cc/PCH3-ACBY]; Ohio Oil & Gas Ass’n (OOGA), proponent testimony
supporting Ohio H. Bill 278 before the Ohio H. R. 125th Gen. Assembly Energy and Env’t
Comm., Oct. 8, 2013, http://208.68.184.222/wp-content/uploads/2011/12/HB278TESTesti
mony-1.pdf.
4 See, e.g., Aaron Marshall, New Quinnipiac Poll: Ohioans Want Hydro-fracking Stopped
Until More Study is Done, THE PLAIN DEALER, Jan. 20, 2012, http://www.cleveland.com
/open/index.ssf/2012/01/new_quinnipiac_poll_ohioans_st.html [https://perma.cc/8URY
-33L9] (summarizing recent Quinnipiac polls, finding a margin of seventy-two percent
to twenty-three percent of Ohio voters wanted to suspend hydraulic fracturing until there
are further studies on its impact, however, the same polls show eighty-five percent to
2016] WHEN STATES’ LEGISLATION & CONSTITUTIONS COLLIDE 59
all, on their own terms—local terms. Local jurisdictions seeking to con-
trol or influence the work of the shale oil and gas industry argue it is
within their right of self-government to enact ordinances to protect the
health and welfare of their citizens and communities.5 They believe some
ordinances that are protective of health and welfare may also sometimes
effect drilling.6 State legislation in many states,7 including Ohio, suggests
the contrary.8 For example, in Ohio, the legislature long ago enacted the
eleven percent of Ohioans believe the industry can create jobs). While public opinion
seems fractured, environmental and lobbyist groups loudly oppose the promise of the
natural gas economy in Ohio. See Anti-fracking Charter Amendment to be on Nov. 4 Ballot
in Youngstown, THE YOUNGSTOWN VINDICATOR, Sept. 2, 2014, http://www.vindy.com/news
/2014/sep/02/anti-fracking-charter-amendment-be-nov-4-ballot-yo/ [https://perma.cc/9HXY
-BW6B] (showing the tension in attitudes between industry and environmentalist groups
on the impacts of drilling for the city).
5 See, e.g., Sara Dorn, Anti-fracking Bill of Rights Will Be on Gates Mills November Ballot
After Village Officials Change Stance, THE PLAIN DEALER, Sept. 8, 2014, http://www.cleve
land.com/hillcrest/index.ssf/2014/09/anti-fracking_bill_of_rights_w.html [https://perma
.cc/DF6U-5L47] (discussing a small-town petition to adopt a charter amendment pre-
venting “fracking in the village”).
6 See State ex rel. Morrison v. Beck Energy Corp., 37 N.E.3d 128, 139 (Ohio 2015) (sup-
porting the proposition that “municipalities have statutory authority to regulate land
uses within zoning districts to promote the public health, safety, convenience, comfort,
prosperity, and general welfare.”).
7 In 2012 alone, fourteen states enacted or refined comprehensive oil and gas legislation,
which in each state restricted local control to at least some degree. Enacting states
included Idaho, Kansas, and Utah. See Jacquelyn Pless, States Take the Lead on
Regulating Hydraulic Fracturing: Overview of 2012 State Legislation, NAT. CONF. OF ST.
LEGISLATURES 1 (March, 2013), http://www.ncsl.org/documents/energy/NaturalGasDev
Leg313.pdf [https://perma.cc/YW7A-E8BC]. In 2015, Colorado and Oklahoma were
considering legislation that would explicitly preempt local oil and gas regulation. Id.
Some of the proposed measures would allow for certain ordinances (such as those related
to road use, traffic, noise, or odor) but would prevent outright bans. According to the
National Conference of State Legislatures, numerous states have attempted, or are
currently attempting, to preserve local control of fracking in a number of ways including:
legislators in ten states have proposed restrictions about where wells can be located and
how close they can be to each other, legislators in at least seven states are considering
bills requiring additional disclosure rules for chemicals, and legislators in at least nine
states are considering measure to regulate the transport, treatment, and disposal of
wastewater produced from fracking. Id. In addition, several states (Colorado and North
Dakota among them) have joined Wyoming in a lawsuit questioning the Bureau of Land
Management’s authority to impose a regulatory framework on what has traditionally
been under the jurisdiction of state officials. See Kristy Hartman, Economies of Shale, ST.
LEGISLATURES MAG. (June 1, 2015), http://www.ncsl.org/research/environment-and-natu
ral-resources/economies-of-shale.aspx [https://perma.cc/75WV-7XX9].
8 See, e.g., 58 PA. CONS. STAT. §§ 3303–3304 (2016), http://www.legis.state.pa.us/cfdocs/legis
/LI/consCheck.cfm?txtType=HTM&ttl=58 [https://perma.cc/3JM2-Y6BF]; N.Y. ENVTL.
CONSERV. § 23-0303 (1981), http://codes.findlaw.com/ny/environmental-conservation-law/env
-sect-23-0303.html [https://perma.cc/29ES-4LHM]; H.B. 40, 84th Leg. (Tex. 2015), http://www
60 WM. & MARY ENVTL. L. & POL’Y REV. [Vol. 41:55
original Ohio Revised Code section 1509.02.9 In its current form it bestows
on the Ohio Department of Natural Resources’ Division of Oil and Gas
Resources Management “sole and exclusive authority to regulate” in the
field of oil and gas.10 In recent years, the Ohio legislature has lengthened
and strengthened this statute primarily with respect to its assertion that
it preempts local control in a broad area of oil and gas regulation.
Still, some local jurisdictions have enacted outright drilling bans,11
others have enacted local permit requirements, fees, or inspections for oil
and gas activities,12 and still others hope to control oil and gas operations
by controlling traffic, noise, or aesthetics.13 Some local jurisdictions passed
resolutions opposing what they see as the Ohio legislature’s special treat-
ment of the oil and gas industry14—by attempting to exempt the industry
from all local control. They argue that despite apparent preemption by
state legislation local control ordinances should be permissible under the
home rule authority they claim through Ohio’s constitution.15 This author-
ity purports to grant local jurisdictions “authority to exercise all powers
of local self-government and to adopt and enforce within their limits such
.legis.state.tx.us/tlodocs/84R/billtext/pdf/HB00040F.pdf#navpanes=0 [https://perma.cc/3L
MX-S3Q4]; S.B. 809, 55th Leg., 1st Sess. (Okla. 2015), http://webserver1.lsb.state.ok.us
/cf_pdf/2015-16%20ENR/SB/SB809%20ENR.PDF [https://perma.cc/BD2T-UBM4].
9 OHIO REV. CODE ANN. § 1509.02 (West 2013).
10 Id.
11 Several Ohio cities and towns sought to ban fracking through the November 2014 bal-
lot, including the cities of Athens, Youngstown, and Kent. See, e.g., David DeWitt, Anti-frack-
ing Group Looks Beyond Ballot Initiative Toward Continuing Efforts, THE ATHENS NEWS,
Oct. 29, 2014, http://www.athensnews.com/ohio/article-43560-anti-fracking-group-looks
-beyond-ballot-initiative-toward-continuing-efforts.html [https://perma.cc/4H85-B3YT];
David Lange, Restore Rights to Real People, CHAGRIN VALLEY TIMES, Oct. 2, 2014, http://www
.chagrinvalleytoday.com/viewpoint/our_viewpoint/article_cb5fba80-4992-11e4-b97a-0017a
43b2370.html [https://perma.cc/MB75-L5BW]; Matthew Merchant, Rallying for Local Frack-
ing Regulations, KENT WIRED, Oct. 12, 2014, http://www.kentwired.com/latest_updates
/article_44516b06-527f-11e4-a15c-0017a43b2370.html [https://perma.cc/L6K6-FW32].
12 The cities of Munroe Falls and Broadview Heights are among Ohio localities that have
tried to exert control over drilling activity using zoning regulations and other ordinances,
rather than outright bans. See Sara Dorn, The Fracking Debate: How Communities are
Trying to Control Drilling, THE PLAIN DEALER, Aug. 14, 2014, http://www.cleveland.com
/hillcrest/index.ssf/2014/07/the_fracking_debate_how_commun.html [https://perma.cc /S93S
-KJVY].
13 See Bob Downing, Communities Seek Ways to Override State Control of Oil and Gas
Drilling Boom, AKRON BEACON J., Sept. 10, 2012, http://www.ohio.com/news/local-news
/communities-seek-ways-to-override-state-control-of-oil-and-gas-drilling-boom-1.332880
[https://perma.cc/X7DX-7YMB].
14 Id.
15 See Brief of Appellant at 2–3, State ex rel. Morrison v. Beck Energy Corp., 989 N.E.2d
85 (Ohio App. 9 Dist. 2013) (No. 2013-0465), 2013 WL 5229893, at 2.
2016] WHEN STATES’ LEGISLATION & CONSTITUTIONS COLLIDE 61
local police, sanitary and other similar regulations, as are not in conflict
with general laws.”16
This Article explores the nationally common problem of tension
and conflict among state oil and gas statutes, constitutional home rule, and
local control by considering intersections and tensions among the Ohio
Constitution’s home rule authority, the Ohio oil and gas law’s preemption
provision, and the many regulatory efforts of Ohio’s local governments.
It explores the scope of the Ohio Constitution’s home rule authority, in
part, by evaluating courts’ statements on the validity of several types of
local ordinances, as they confront home rule and a legislative attempt at
preemption. Types of local ordinances evaluated include those that pro-
hibit or ban drilling, those that impose additional permitting fees, hear-
ings or other requirements upon drillers, and those that pertain to more
traditional exercises of zoning authority. The Article also considers some
similar local control efforts in the region—in particular, in New York and
Pennsylvania—which have constitutional home rule provisions similar
to Ohio’s, and where, like Ohio, the shale oil and gas industry is active. By
considering the constitutions, legislation, and local control efforts of nearby
states that are, like Ohio, within the Utica, Marcellus, and Barnett shale
plays, this Article gauges the legal circumstances under which localities
might regulate the actions of the shale oil and gas industry within their
borders, and under what circumstances these efforts might succeed. Be-
cause this problem presents itself throughout the country, this Article looks
briefly at similar circumstances in other regions, in particular, Colorado
and Texas. These states have active shale oil and gas industries, legisla-
tures vigorously working to preempt local control, and some engaged local
communities hoping to exert some influence over oil and gas activities in
their jurisdictions.
Although it comes in many variations, the main question is this:
does constitutional home rule, when coupled with statutory preemption
of local control, allow any room for local regulation of the shale oil and
gas industry?
I. THE MANY MASTERS OF SHALE OIL AND GAS PRODUCTION:
LEGISLATION, CONSTITUTIONS, AND THE COURTS
A. Ohio’s Oil and Gas Law
Theoretically, localities can use their police power to regulate
activities within their borders for the health, safety, and welfare of their
16 OHIO CONST. art. XVIII, § 3.
62 WM. & MARY ENVTL. L. & POL’Y REV. [Vol. 41:55
citizens.17 Ohio’s constitution even includes a home rule provision to help
protect this authority.18 Localities can enact and enforce substantial con-
trols over the activities within their borders.19 They can enact noise ordi-
nances, zoning plans, and traffic controls. They can decide where houses
can be built, and in which areas commercial and industrial activities may
take place. These are traditional exercises of land use and zoning powers.20
That said, state legislatures sometimes enact laws that claim
specific, and sometimes broad, regulatory authority, thereby preempting
the regulatory power of the local jurisdiction. That is what the Ohio
legislature did in Ohio Revised Code section 1509.02, Ohio’s oil and gas
law. This section will address the evolution of that statute to understand
how, through serial amendments, section 1509.02 evolved to become the
restrictive, putatively preemptive statute it is today.21
17 See, e.g., State ex rel. Petit v. Wagner, 164 N.E.2d 574, 575–76 (Ohio 1960) (noting the
inherent power of municipalities to perform certain functions without state approval);
Fondessy Enter. v. City of Oregon, 492 N.E.2d 797, 799–800 (1986) (explaining that
“Section 3, Article XVIII of the Ohio Constitution grants municipalities ‘. . . the power to
adopt and enforce within their limits such local police, sanitary and other similar
regulations, as are not in conflict with general laws.’” This “power of home rule” is
constitutionally conferred upon municipalities and may not be withdrawn by the General
Assembly); Akron v. Scalera, 19 N.E.2d 279, 279–80 (1939). See also George L. Blum,
Annotation, Validity of Zoning Regulations Prohibiting or Regulating Removal or Exploi-
tation of Oil and Gas, Including Hydrofracking, 84 A.L.R. 6th 133 (2013).
18 OHIO CONST. art. XVIII, § 3.
19 See, e.g., Cleveland v. Shaker Heights, 507 N.E.2d 323, 326 (Ohio 1987) (holding that
it was within a city’s home rule police power to regulate traffic, despite a state statute
that all cities keep their streets “open”); Cincinnati v. Welty, 413 N.E.2d 1177, 1178 (Ohio
1980) (holding that the City of Cincinnati had traditional home rule purview over what
type of vehicle could drive on its streets when that had a “real and substantial relation”
to its police powers).
20 See Wendy H. Gridley, Municipal Home Rule, 128 MEMBERS ONLY 8 (Jan. 26, 2010),
http://www.lsc.ohio.gov/membersonly/128municipalhomerule.pdf [https://perma.cc/2QRL
-32U7] (explaining that a municipality has the power to enact zoning regulations to ad-
dress concerns such as “traffic control, traffic volume, property values, enhancement of
municipal revenue, costs of municipal improvement, land use, nuisance abatement, and
the general welfare and development of the community as a whole.”). See also Morrison,
37 N.E.3d at 128 (O’Donnell, J., concurring) (explaining that, in addition to the Ohio
Constitution, municipalities’ zoning powers are derived from O.R.C. § 713.07 which
provides that municipalities may regulate or restrict the use of a premises if the restric-
tion is “in the interest of the promotion of health, safety, convenience, comfort, prosperity,
or general welfare”).
21 This section draws heavily on the author’s previously published column in Crain’s
Cleveland Business regarding the development of Ohio’s oil and gas law, granting in-
creasing control to the Ohio Department of Natural Resources, and decreasing involve-
ment of local authorities. See Heidi G. Robertson, The Road to State Control Over Drilling
2016] WHEN STATES’ LEGISLATION & CONSTITUTIONS COLLIDE 63
The Ohio legislature worked hard to establish tight state regula-
tory control over shale oil and gas operations. It created a uniform state-
wide regulatory system by constraining the ability of local jurisdictions to
enact their own controls, and by consolidating decision-making authority
in a state agency. When Ohio Revised Code section 1509.02 was first en-
acted in 1964,22 it merely “created in the department of natural resources
the division of oil and gas . . . .”23 The Ohio legislature has amended it
many times since then. Most of the amendments are not relevant to the
local control question—instead dealing with funding issues.24
In 2000, an amendment combined the Division of Mines and Rec-
lamation and the Division of Oil and Gas—both within the Ohio Depart-
ment of Natural Resources (“DNR”), and created the Division of Mineral
Resources Management.25 This change, although it affected the Division
of Oil and Gas, did not yet start the legislation’s march towards eliminat-
ing local control of shale oil and gas regulation.
The legislature’s push to consolidate decision-making authority
in the state agency began, in earnest, in 2004 with House Bill 278.26 The
legislature made some important and lasting changes. This is where it
first gave the Division of Oil and Gas Resources Management “sole and
exclusive authority to regulate the permitting, location, and spacing of
oil and gas wells within the state.”27 It declared the “regulation of oil and
gas activities [to be] a matter of general statewide interest that requires
uniform statewide regulation” and it declared the “rules adopted under
[the new law to be] a comprehensive plan with respect to all aspects of
is Paved With Legislation, CRAIN’S CLEVELAND BUS., Aug. 22, 2014, http://www.crains
cleveland.com/article/20140822/BLOGS05/140829925 [https://perma.cc/N9VX-HYBZ].
22 See OHIO REV. CODE ANN. § 1509.02 (West 1964).
23 Id.; OHIO REV. CODE ANN. § 1509.02 (West 1977), amended by OHIO REV. CODE ANN.
§ 1509.02 (Supp. 1984) (adding the following language: “All fines imposed under 1509.99
of the Revised Code shall be paid to the treasurer of state and credited by him to the oil
and gas well plugging fund created by section 1509.071 of the Revised Code.”).
24 See OHIO REV. CODE ANN. § 1509.02 (1975); OHIO REV. CODE ANN. § 1509.02 (1999);
OHIO REV. CODE ANN. § 1509.02 (2001); OHIO REV. CODE ANN. § 1509.02 (1984), amended
by OHIO REV. CODE ANN. § 1509.02 (Supp. 1995) (providing for the creation of an “oil and
gas permit fee” special account which would be appropriated to the division of oil and gas
biennially); OHIO REV. CODE ANN. § 1509.02 (1995), amended by OHIO REV. CODE ANN.
§ 1509.02 (1999) (removing the biennial appropriation provision and instead provided
that “the fund shall be used only for the expenses of the division associated with the
administration of the Natural Gas Policy Act of 1978”).
25 1999 Ohio Laws 45.
26 H.B. 278, 125th Gen. Assemb. (Ohio 2004) (enacted), updated by 2004 Ohio Laws 98;
see also Robertson, supra note 21.
27 2004 Ohio Laws 98 (codified as OHIO REV. CODE ANN. § 1509.02 (West 2004)).